The Department of Justice argued Tuesday that President Donald Trump would be well within his authority to fire all agency chiefs who are women—or over the age of 40.
Eric McArthur, a deputy assistant attorney general, made the statement in response to a hypothetical scenario posed by Judge Karen Henderson of the D.C. Circuit Court of Appeals during Tuesday’s oral argument over the firing of two board members of independent agencies.
Earlier this month, two district judges ruled in two separate cases that Trump illegally fired Merit Systems Protection Board member Cathy Harris and National Labor Relations Board member Gwynne Wilcox. Former President Joe Biden nominated Harris to the MSPB in 2021 and Wilcox to a second five-year term at the NLRB in 2023.
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The Trump administration has appealed those rulings.
“Mr. McArthur, could the president decide that he wasn’t going to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old?” Henderson, one of three judges on the panel, asked the DOJ attorney during the proceedings.
“I think that that would be within the president’s constitutional authority under the removal power,” McArthur responded. “There would be separate questions about whether that would violate other provisions of the Constitution.”
Before McArthur could finish, Judge Justin Walker stepped in to say he was “not sure” that the DOJ “would have to go there,” citing protections under the 14th Amendment.
“What about the over 40 part?” Judge Patricia Millett pressed McArthur. “All you need is a rational basis under the Constitution. Is ‘I desire to exercise my removal power’ a rational basis?”
“I think it might well be a rational basis,” McArthur replied, prompting Millett to confirm whether that was his view.
“I don’t wanna get out over my skis here,” McArthur continued. “Obviously, all of these are sensitive questions. When the department makes decisions about this, this is made to the very top—the acting solicitor general. And I do not wanna get out in front of the president or the acting solicitor general on any of these issues.”
The MSPB and NLRB are watchdog agencies that protect federal merit systems from prohibited personnel practices and workers from unfair labor practices. Wilcox was the first black woman to serve on the NLRB.
Trump fired Harris in February and Wilcox in late January.
On March 4, U.S. District Judge Rudolph Contreras ordered the reinstatement of Harris, noting that the president “provided no reason for Harris’s termination” and stressing that MSPB members can only be removed for inefficiency, neglect of duty, or malfeasance.
Two days later, U.S. District Judge Beryl Howell also ordered that Wilcox be reinstated to her post at the NLRB as the president does not have the authority to terminate the board’s members at will.
McArthur argued on Tuesday that “they are agency heads who answer to no one but the president.”
